December 8, 2009
Dear Senator Schumer,
My name is David Asser. I'm an immigration attorney in Phoenix, Arizona. I’m asking for your attention to the promises of this new Administration with regard to our current immigration system to “fix the dysfunctional immigration bureaucracy and enable legal immigration so that families can stay together”.
Based on my experience as a lawyer this promise sounds incredibly hollow in light of what is currently happening in this country every day. The US Department of Homeland Security (“DHS”), in particular Immigration and Customs Enforcement (“ICE”) and Citizenship and Immigration Service (“CIS”) continues to position itself as an Enforcement Only agency with no regard to the consequences to US citizen family members, mostly minor children who continue to suffer beyond belief when families are torn apart.
It is hard to fathom that Trial Attorneys in Immigration Court are actually representing the Executive Branch, when they show no mercy or compassion, contrary to message of the White House. Moreover the Executive Office for Immigration Review (“EOIR”) routinely holds on appeal that the extreme hardship that is suffered by US citizen children when their parents are being deported is not sufficient to warrant the “Cancellation of Removal”. The bar of “exceptional and extremely unusual hardship” is set so incredibly high that almost no one satisfies the burden.
Since Comprehensive Immigration Reform seems unlikely to happen any time soon, I would like you, in your capacity of Chairman of the Sub-Committee on Immigration of the Judiciary Committee to specifically review the consequences of the enactment of fourth requirement the Cancellation of Removal provision of the Immigration and Nationality Act (“INA”), Section 240A(b).
Cancellation of Removal for certain Non-Permanent Residents was enacted in 1997 in INA 240A(b), (8 USC §1229b):
(1) IN GENERAL.-The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2) , or 237(a)(3) , subject to paragraph (5) 2a/ 5/ ; and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
The standard as set forth under “D” can hardly be met by a healthy, well-adjusted minor child. It cannot even be met by a child that is suffering from depression resulting from the ongoing and immediate threat of deportation of a parent. EOIR has ruled that a person “must show more than extreme hardship”.
As such, I would respectfully request that you strive to reinstate discretion to the Immigration Judge by lowering the standard to “extreme hardship”, allowing a Judge to actually balancing the equities with any negative factors. I would ask you to immediately introduce a bill to amend this Section of the INA. This act alone will reduce the amount of suffering and injustice that is being experience by US born children whose parents happen to have entered this country without the proper documents and who decided to stay in order to create a better life for these children.
Changing INA 240A(b) will not have an inviting effect on future illegal immigrants, since the Section is limited to those who have been in the US for more than ten years. Moreover, its scope is limited to those who have good moral character and haven’t committed any deportable crimes. Such change would not have a negative impact on any government resource. On the contrary, it would allow cases to run faster through the system, bringing people out of the shadows and into society, which can only be considered positive.
On November 17, 2009 I represented another family in Immigration Court, and although this is a beautiful family with three US citizen children, ICE opposed a grant of Cancellation of Removal, although the trial attorney admitted that this was a heartbreaking case and I anticipate that the Immigration Judge will not rule in favor of my client. The question then becomes, “are we that kind of society?” I didn’t think so.
In the absence of any Comprehensive Immigration Reform and/or detailed changes to the current law, as referenced above, I would urge you to ask the Administration to provide immediate guidance to its agencies to implement its philosophy of compassion and family unity to provide Temporary Protected Status to those who could qualify for Cancellation of Removal until further guidance has been given.
Attorney at Law